Split COA affirms adoption without father’s consent

A divided Indiana Court of Appeals has affirmed a Morgan County adoption decree over a father’s objections, finding his consent was irrevocably implied due to his failure to appear at a final hearing.

The grandparents of C.A.H. filed to adopt the minor child after serving as guardians for most of C.A.H.’s life. While the child’s mother consented to the adoption, the father did not, but the grandparents argued his consent was not necessary pursuant to Indiana Code section 31-19-9-8.

Proceedings in the case were prolonged over a 20-month period, in which father A.C.S. was late to a hearing, failed to appear for a deposition due to his incarceration, and failed to appear during the final hearing after numerous continuances.

The Morgan Superior Court denied his motion for a continuance on the final hearing, finding no cause as to his failure to appear, then issued the adoption decree. A.C.S. responded with an Indiana Trial Rule 60(B) motion for relief from judgment, arguing that although he overslept on the morning of the final hearing, he still appeared at the courthouse during the scheduled hearing time on the date of the hearing.

That motion was denied, and A.C.S. contended on appeal that the trial court erred by finding his consent to the adoption of C.A.H. was irrevocably implied because he failed to appear. A.C.S. argued that he did not fail to prosecute his motion to contest without undue delay because he participated in the adoption proceedings on an “ongoing and consistent” basis.

A divided Indiana Court of Appeals affirmed the trial court, finding guidance from K.S. v. D.S., 64 N.E.3d 1209 (Ind. Ct. App. 2016). The majority concluded the circumstances in In the Matter of the Adoption of C.A.H., Minor Child, A.C.S. v. R.S.E. and R.K.E., 19A-AD-240, were “very similar” to those presented in K.S., first noting that A.C.S. also filed a motion to contest the adoption and proceeded to repeatedly neglect participation in the adoption proceedings.

“Here, Father failed to appear at the final hearing without any explanation or contact with his counsel when he was aware of the time and date,” Judge James Kirsch wrote for the majority joined by Judge Robert Altice. “At the time that he failed to appear, Father’s counsel did not know his whereabouts or a way of contacting him, although the trial court had previously informed Father that he must stay in contact with his counsel and provide her with any information necessary.”

On the finding that A.C.S. did not elaborate as to what actual time he appeared at the courthouse, the appellate panel concluded his assertion was not supported by any evidence. The majority therefore found the trial court did not err in finding A.C.S.’s consent was irrevocably implied due to his failure to appear and prosecute the motion without unreasonable delay.

However, Chief Judge Nancy Vaidik dissented from the majority in a separate opinion, arguing the evidence was insufficient to come to such a conclusion.

The dissenting chief judge first pointed out that while A.C.S. showed up late to a hearing and missed his scheduled deposition, his absences were not cited by the trial court to justify its ruling. She further noted the father had been in contact with his attorney the day before his final hearing and said he would be at the courthouse between 8:30 and 8:45 a.m.

“The majority relies almost exclusively on K.S., but that case is nothing at all like this case,” Vaidik wrote. “There, the mother filed a motion to contest the adoption but then disappeared. In other words, she took no steps to prosecute her claim. Here, in contrast, Father prosecuted his claim for well over a year before missing the final hearing.

“Although Father failed to appear at the final hearing, his actions during the sixteen months leading up to the final hearing — most importantly, his active participation in the related paternity proceedings — are not the actions of a parent who is failing to prosecute the motion to contest without undue delay, “ Vaidik wrote. “In affirming the trial court, the majority sets a dangerous precedent. Under the majority’s holding, the bar for finding implied consent in adoption cases is set too low.”

Instead, Vaidik said she would remand the case to give A.C.S. an opportunity to contest the allegations that he failed to communicate with and support his child.

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